Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

I’ve got a long post mostly written on the debate between two awful positions on the detainee provisions in the Defense Authorization.

But let me make something clear. Both sides have already bought off on one principle: that the Administration can indefinitely detain US citizens.

Dianne Feinstein made this clear in her comments yesterday in the Senate (in which she was reading from a letter SJC and SSCI Democrats wrote).

Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force, especially because it would authorize the indefinite detention of American citizens without charge or trial …..

And yet while in the rest of her speech, DiFi laid out problems she had with sections 1032 (mandating military detention in most cases), 1033 (requiring certification before DOD transfers detainees to a third country), and 1035 (giving DOD precedence in detainee decisions), she made not a peep objecting to (as opposed to raising cautions about) this ability to indefinitely detain American citizens.

In response to DiFi’s speech and the Administration’s veto threat, Carl Levin revealed that the Administration’s complaints about the language authorizing military detention don’t stem from any squeamishness about indefinitely detaining Americans. Indeed, as Levin made clear, the Administration asked that limitations on applying the section to Americans be taken out of the bill.

The committee accepted all of the Administration’s proposed changes to section 1031.  As the Administration has acknowledged, the provision does nothing more than codify existing law.  Indeed, as revised pursuant to Administration recommendations, the provision expressly “affirms” an authority that already exists.  The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

And given that SASC already voted to support this section by significant margins, it appears clear it has plenty of support.

So make no mistake. As I’ll show in my longer post, there are clear differences between the two sides (though I find both sides problematic). But whether or not the government can indefinitely detain Americans is not one of them.

Update: I took out “militarily,” as 1032 exempts automatic military detention for US citizens.

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14 Responses to Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

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Emptywheel Twitterverse
bmaz I am not sure you geniuses on the east coast with long arm for asking, and short arm for answering, actually give a shit about Sep of Pwrs.
9mreplyretweetfavorite
bmaz I KNOW all you DC Press Peoples are all up on everything, but after weeks of telling you, now @lawfareblog says so, can you pay attention?
11mreplyretweetfavorite
bmaz Maybe the war drum bangers for Syria, Iraq, Ukraine, Somalia+all the other asinine places in world are right; history says no. cc: @lrozen
21mreplyretweetfavorite
bmaz .@nicholsong Ooops, yeah, I fell for that BS back in the day, see: http://t.co/zj45YfdKlZ But turned out to be total bullshit. cc: @lrozen
23mreplyretweetfavorite
bmaz .@nicholsong You have something that says the current, apparent, Obama Admin. rolling desecration of the WPR is fine and dandy? Really?
31mreplyretweetfavorite
bmaz So, sorry, hope I didn't insult any of high holy 30 somethings over petty little thing like Sep of Pwrs. Cause, you know #PoliticalBullshit
44mreplyretweetfavorite
bmaz Lawdy, I JUST CAN'T WAIT for some nubes at @TNR to tell me how freakin OK+normal it is for Obama to be desecrating WPR Separation of Powers.
48mreplyretweetfavorite
bmaz @timmathews Really, that is a great location, right in the heart of New Orleans. #BonusPointsForFalseCheer?
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bmaz @SuzanneTwoTon We can't go on like this together...
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bmaz They got the guns, but we got the numbers. Going to win, yeah we're taking over. Come on! #FamousPoet #Ferguson #MichaelBrown
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bmaz @SuzanneTwoTon Woo woo woo, I feel my temperature rising.
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bmaz @OBEYshiba No no, the Carol is at the Welcome! But, Ingos, yeah.
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